Whether valid will is executed if attesting witnesses put their signature on will on date of registration?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 779 of 2011 (A)

Decided On: 07.03.2017

K.C. Bindu and Ors.
Vs.
Leela Kollandi and Ors.

Hon’ble Judges/Coram:B. Kemal Pasha, J.

Citation: AIR 2017(NOC)1119 Kerala

1.”(1) Can the execution of a Will and its attestation be on a date subsequent to the date shown in it as the date of its execution?

(2) When the signatures of the testator in the Will are totally different and dissimilar, is it not the duty of the propounders to get those signatures examined by an expert through comparison with his admitted signatures?”

2. Challenging the concurrent findings entered by the Subordinate Judge’s Court, Koyilandy in O.S. No. 17/2006, followed by those of the II Additional District Court, Kozhikode in A.S. No. 64/2007, the plaintiffs in the suit have come up with the second appeal.

3. Initially, the suit was one for injunction simpliciter. A decree of perpetual injunction was sought for to restrain the defendants from forcibly evicting the plaintiffs from the plaint schedule property and also restraining the first defendant from creating any documents in respect of the plaint schedule property and from alienating or encumbering it and also from committing any waste thereon.

4. After the written statement, the plaintiffs amended the plaint by incorporating a relief by way of declaration that Ext. B2 Will dated 21.03.2001 registered as document No. 29/2001 of the Kozhikode Sub Registry is void and is not binding on the plaintiffs, for declaring that document No. 3532/99 dated 27.12.1999 of the Payyoli Sub Registry is null and void, for directing the 4th defendant to vacate plaint B schedule property and to put the plaintiffs in possession of plaint B schedule property, and also for restraining the 4th defendant from committing trespass into any of the portions of the plaint A schedule property, by a decree of perpetual injunction. Plaint B schedule property is the portion of plaint A schedule property. Plaint B schedule is having an extent of 7 and 5/8 cents of property out of the plaint A schedule property.

5. Plaint A schedule property originally belongs to late Raghavan Vaidyar. The first defendant Leela is presently no more and she is the wife of late Raghavan Vaidyar. They have one son and two daughters. The son is one Vinod who is presently no more. The 2nd and 3rd defendants are the daughters. The first plaintiff is the wife of late Vinod, and the 2nd plaintiff is their minor son. According to the plaintiffs, late Raghavan Vaidyar had executed Ext. A1 Will dated 28.06.1999 thereby bequeathing the plaint A schedule property to his only son Vinod by reserving the life interest of the first defendant on the said property.

5. Raghavan Vaidyar died on 10.10.2002. Subsequently Vindo met with a road traffic accident and died on 29.02.2004, leaving the plaintiffs and the first defendant as his legal heirs. On the date of execution of Ext. A1 itself, late Raghavan Vaidyar had executed two more settlement deeds of the very same Sub Registry, one in respect of 12 cents of property in favour of Vinod and the other in respect of 13 cents of property in favour of the 2nd respondent. Ext. A2 is the said settlement deed executed in favour of Vinod. It was in respect of the balance property which was outstanding in his name, he executed Ext. A1 Will. The plaintiffs have alleged that after the death of Vinod, there were attempts from the part of the defendants to forcibly evict the plaintiffs from the plaint schedule property, and hence the suit.

7. Defendants 1 to 3 propounded Ext. B2 Will and contended that late Raghavan Vaidyar had executed Ext. B2 Will on 21.03.2001 and registered the same at the Sub Registry office, Kozhikode, thereby revoking Ext. A1 Will as well as another Will executed by him as document No. 48/1998 of the Payyoli Sub Registry. It is also contended that late Raghavan Vaidyar had assigned the plaint B schedule property to the 2nd defendant and subsequently the 2nd defendant has transferred the same to the 4th defendant for consideration. Defendants 1 to 3 claimed bequest in their favour on the basis of Ext. B2. When they propounded Ext. B2, the plaint was amended by incorporating further pleadings and the aforesaid reliefs in the plaint. Additional written statement was also filed by the defendants. The first defendant died on 20.03.2010.

8. On the amendment of the plaint, the suit exceeded the pecuniary jurisdiction of the Munsiff’s Court, Payyoli thereby the plaint was returned for presentation before the Subordinate Judge’s Court, Koyilandy, where it was duly presented.

9. On the side of the plaintiffs, PWs.1 to 5 were examined and Exts. A1 to A11 were marked. On the side of the defendants DWs.1 to 4 were examined and Exts. B1 to B6 were marked.

10. The trial court upheld the validity of Ext. B2 Will and the plaintiffs were non suited. Aggrieved by the said judgment and decree, the plaintiffs filed A.S. No. 64/2007. The lower appellate court also concurred with the findings entered by the trial court, and dismissed the appeal.

11. This Court had admitted this second appeal on the following substantial questions of law:

“1) When the plaintiffs have specifically pleaded that the signature of the testator seen in Ext. B2 Will is not that of deceased Raghavan Vaidyar, the testator, and in spite of the direction to produce the original of Ext. A1 Will, respondents did not produce the original will to compare the signature seen therein with the signatures seen in Ext. B2 and at the time of evidence DW1 admitted that there is difference in the signature seen in Ext. B2 with the signature of Raghavan Vaidyar seen in Ext. A5, and defendants have not taken any steps to prove that the signature seen in Ext. B2 is that of deceased testator, by getting a report of an expert, whether courts below were justified in proceeding to consider the genuineness of Ext. B2 Will, as if the signature in Ext. B2 Will is admitted by the plaintiffs.

2) Whether on the evidence, courts below were justified in holding that propounders of Ext. B2 Will have discharged the burden of proving Ext. B2 as required under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act, in the light of the evidence of DW2, one of the attesting witness.

3) Whether on the evidence, courts below were justified in holding that propounders of Ext. B2 Will, offered satisfactory explanation for the suspicious circumstances attributed to the execution of Ext. B2 Will.”

12. Heard the learned Senior Counsel Sri.T. Krishnan Unni for the appellants and Advocate Sri. N. Subramanian for the respondents.

13. The learned Senior Counsel for the appellants has argued that even though the appellants have clearly denied the signatures seen affixed in Ext. B2 as those of Raghavan Vaidyar, no attempt has been made by the defendants to get the signatures in Ext. B2 compared with the other admitted signatures of late Raghavan Vaidyar. It is argued that the signatures shown as those Raghavan Vaidyar in Ext. B2 were not affixed by Raghavan Vaidyar. It has been further argued that in the assignment deed in favour of the 2nd respondent allegedly executed by Raghavan Vaidyar in respect of plaint B schedule property also, the signatures shown as those of Raghavan Vaidyar were not affixed by him. It has also been argued that the original of Ext. A1 as well as the aforesaid assignment deed in favour of the 2nd defendant in respect of B schedule property are not available with the plaintiffs. It has been further argued that the execution of Ext. B2 is shrouded with suspicion and the propounders of Ext. B2 have failed to prove the genuineness of Ext. B2 Will and also to dispel the suspicious circumstances exist in the execution of Ext. B2 Will. It has also been argued that both the courts below have failed to consider that even the making of Ext. B2 Will as well as the genuineness of Ext. B2 Will have not been properly proved in terms of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.

14. Per contra, the learned counsel for the respondents has taken this Court through the observations made by the trial court as well as the lower appellate court and argued that Ext. B2 Will clearly stands proved and its genuineness also stands proved. It has been further argued that even though the assignment deed executed by Raghavan Vaidyar in respect of plaint B schedule property in favour of the 2nd defendant, has been challenged by the plaintiffs, the said document has not been produced. Even though the plaintiffs wanted to get declaratory reliefs etc. in respect of plaint B schedule property, the said document or its copy has not been produced and therefore, the reliefs sought for by the plaintiffs in respect of plaint B schedule property cannot be entertained. It has also been argued that on the execution of Ext. B2 Will, the earlier Ext. A1 Will stands revoked and therefore, the parties have to go by the recitals in Ext. B2 Will in respect of the property.

15. The learned Senior Counsel for the appellants has pointed out the following circumstances as suspicious circumstances, which exist in the execution of Ext. B2 Will:

“(1) There was no reason for the late Raghavan Vaidyar to revoke Ext. A1.

(2) The bequeath through Ext. A1 is in favour of his only son and also there was a reservation of life interest over the properties covered by Ext. A1 in favour of wife of the testator.

(3) All the earlier documents were executed and registered at the Payyoli Sub Registry Office; whereas Ext. B2 Will alone was got registered at the Kozhikode Sub Registry Office.

(4) Late Raghavan Vaidyar was suffering from serious illness by the end of 1999 and he could not even attend the marriage of his only son because of his illness and physical incapacity.

(5) Deceased Raghavan Vaidyar had no disposing state of mind after 1999 and he had not regained his health or recovered from illness.

(6) The attestors to Ext. B2 Will are not one of the relatives of the executant.

(7) The date of execution of Ext. B2 Will and the date of its registration are different.

(8) Deceased Raghavan Vaidyar, who was unable to travel that much distance could not have gone to Kozhikode on such two occasions.”

16. As per the guidelines given by the Apex Court in its three Judge Bench decision in H. Venkatachala Iyengar v. B.N. Thimmajamma and others [MANU/SC/0115/1958 : AIR 1959 SC 443] followed by a catena of decisions of the Apex Court, it has become trite law that it is for the propounder to prove the genuineness of the contents of a Will and to dispel all the suspicious circumstances exist in the execution of a Will. In this particular case, on going through the judgment rendered by the trial court and the judgment rendered by the lower appellate court, it has clearly come out that both the courts below were carried away and has not followed the aforesaid principles. Both the courts below had taken the view that the appellants have failed to prove any of the suspicious circumstances in the execution of Ext. B2. The whole approach made by both the courts below are apparently erroneous.

17. The courts below ought to have considered whether there were suspicious circumstances exist in the execution of Ext. B2 Will and whether the propounder of Ext. B2 Will could dispel all such suspicious circumstances. Even though the plaintiffs have forwarded their claims based on Ext. A1 Will, when Ext. B2 Will was propounded by defendants 1 to 3 by contending that it is the last Will of the testator, it is for defendants 1 to 3 to prove the genuineness of Ext. B2 Will and they were duty bound to dispel all the suspicious circumstances exist in the execution of Ext. B2 Will. Therefore, the whole approach made by both the courts below were not on proper lines.

18. The learned Senior Counsel for the appellants has invited the attention of this Court to Ext. B2 Will and has pointed out that the signatures of testator on all the pages of Ext. B2 Will are totally different and dissimilar to one another. It seems that the signatures are blurred. It is the admitted case of DW2, the scribe and DW3 the attesting witness that the testator had shivering of his hand. Therefore, evidently, the testator was not well. In fact, the signatures shown as those of the testator in Ext. B2 Will, cannot be considered as signatures; whereas it can only be considered as some marks, which are not at all identifiable. When the plaintiffs have clearly averred and alleged that those signatures were not affixed by Raghavan Vaidyar, defendants 1 to 3 ought to have got those signatures compared by an expert with the admitted signatures of late Raghavan Vaidyar. The said exercise was not done by defendants 1 to 3 for reasons best known to them.

19. Another suspicious circumstance being relied on by the plaintiffs is that late Raghavan Vaidyar had executed and registered all the other documents relating to his properties, at the Payyoli Sub Registry. In the case of Ext. B2 Will, he has chosen the Kozhikode Sub Registry Office, even when he was practically incapable even to move. Any explanation on that aspect has not been given by defendants 1 to 3. The only contention by the first defendant as DW1 on that aspect is that it is the prerogative of late Raghavan Vaidyar to execute Ext. B2 and he got it registered at the Sub Registry Office, Kozhikode, and the first plaintiff has no right to question it. Apart from that contention, there is no explanation at all on that aspect. It is also the admitted case of the first defendant that late Raghavan Vaidyar did not attend the marriage of his only son. The marriage was also in the year 1999. Her explanation to that aspect is that there is no practice of the parents attending the marriage of their son. The said explanation is not at all believable. That itself paves the way to this Court to think that the case forwarded by the plaintiffs that late Raghavan Vaidyar was not even in a position to attend the marriage of his son on account of his ill-health, is believable. Apart from that, the signatures shown in Ext. B2 also clearly reveal that the said person, who had affixed such signatures, was not capable of even signing the document.

20. The evidence tendered by the defendants to prove the execution of Ext. B2 Will and the genuineness of Ext. B2 Will have also to be considered. DW2 is the scribe who prepared Ext. B2 Will. Ext. B2 is dated 21.03.2001. The date of execution of Ext. B2 Will is clearly shown as 21.03.2001. According to DW2, Ext. B2 was prepared as instructed by Raghavan Vaidyar and his wife. At the same time, DW1 who is the wife of testator, has clearly stated that Raghavan Vaidyar was not in the habit of discussing such matters with her. According to DW2, Ext. B2 Will was registered on 27.03.2001. He clearly narrated and explained that on 27.03.2001 at 9.30 a.m., the testator, his wife and two attestors came to his office. Ext. B2 Will was read over to them. The testator signed in Ext. B2 Will in his presence as well as in the presence of the attestors. Thereafter, the attestors affixed their signatures. After that they went to the Sub Registry office and got Ext. B2 Will registered.

21. In cross- examination, DW2 has clearly deposed that Ext. B2 Will was prepared on 21.03.2001 and it was signed on 27.03.2001. When he was asked whether the testator and the attesting witnesses had affixed their signatures in Ext. B2 Will on 21.03.2001, he clearly stated that the signatures were affixed on 27.03.2001. In re-examination he was made to say that Ext. B2 Will was intended to be registered on 21st and thereby it was prepared and subsequently it was postponed to 27th when he was so instructed over phone.

22. DW3 is one of the attesting witnesses in Ext. B2. His evidence in chief examination itself shows that the document was read over to them and thereafter Raghavan Vaidyar affixed his signature on all the pages of Ext. B2 Will in his presence and the other attesting witnesses, and they could see him signing it. Thereafter, he along with other attesting witnesses, after writing their names and addresses in the last page of Ext. B2 Will, affixed their signatures. Strangely enough, DW3 has no case that he along with the other attesting witnesses had affixed their signatures in the presence of the testator or that the testator could see them affixing their signatures in Ext. B2 Will. Therefore, such an attestation cannot be treated as proper and valid attestation within the meaning of S.63(c) of the Indian Succession Act.

23. In cross-examination, DW3 has deposed that the testator had given instructions to the document writer to prepare Ext. B2 Will while they were in the car. He clearly admitted that it is false to state that the signatures were affixed in Ext. B2 Will on 21.03.2001. Apart from that, the credibility of DW3 has also to be considered. He has clearly admitted that he was an accused in a vehicle theft case and further that another case was there against him when he was found in suspicious circumstances.

24. Execution of a document and registration of a document are totally different. The formalities for attestation contemplated under Section 63 of the Indian Succession Act is confined to the execution of a Will and not for its registration. A Will is not a compulsorily registrable document. In fact, registration has no importance at all; whereas, registration may result in some sort of added credibility on the proof of its execution. The presence of identifying witnesses before the Registrar cannot be substitute of valid attestation in the case of a Will. The attestation contemplated under Section 63(c) of the Indian Succession Act is confined to the execution and not the registration.

25. On a perusal of Ext. B2 Will and the written statement filed by defendants 1 to 3, it could be seen that the date of execution of Ext. B2 Will is 21.03.2001. When Ext. B2 Will was allegedly executed on 21.03.2001, it cannot be said that the attestation of such a document was on 27.03.2001. The document was registered on 27.03.2001 only. When it is shown that the document was executed on 21.03.2001, that date should be the date of its execution as well as attestation. It has clearly come out from the evidence of DW2 and DW3, that Ext. B2 Will was not executed on 21.03.2001, which date it bears as the date of its execution.

26. In cross-examination, DW1 has stated that she was not consulted by Raghavan Vaidyar for the preparation of Ext. B2 Will. At the same time, DW2 has stated that instructions were given by Raghavan Vaidyar and his wife jointly for the preparation of Ext. B2. DW1 has admitted that till his death, Raghavan Vaidyar was residing with Vinod at the house in the scheduled property. She has also admitted that Raghavan Vaidyar had shivering of his hands.

27. DW1 has admitted that Raghavan Vaidyar did not attend the marriage of his only son. According to her, they had deputed the elder brother of Raghavan Vaidyar for the marriage rituals. She admitted that she could realise the contention resorted to by the plaintiffs that the signatures in Ext. B2 were not affixed by Raghavan Vaidyar. She has further admitted that she knew that the signatures could be proved through proper comparison. According to her, the difference in the signatures in Ext. B2 had occurred on account of the shivering of the hand of Raghavan Vaidyar. From the evidence of DW1, DW2 and DW3 and also the contents of Ext. B1 as aforesaid, it has come out that the execution of Ext. B2 is shrouded with suspicion. Not only that the propounders could not prove the proper execution and attestation of Ext. B2, but also that they could not dispel any of the suspicious circumstances exist in the execution of Ext. B2.

28. The defendants have failed to prove even the making of the Will and its attestation. The signatures of the testator in Ext. B2 have no resemblance to one another. In such a case and especially when the plaintiffs had contended that the signatures in Ext. B2 were not affixed by late Raghavan Vaidyar, the propounders of Ext. B2 ought to have attempted to prove the signatures through proper comparison of the signatures in Ext. B2 with the admitted signatures of Raghavan Vaidyar. They have not even cared to produce the original of Ext. A1 as well as the original of document No. 3532/1999 of the Payyoli Sub Registry allegedly executed by Raghavan Vaidyar in favour of the 2nd defendant. They could have made use of that document in order to have a comparison of the signatures of Raghavan Vaidyar allegedly affixed by him in Ext. B2. That itself aggravates suspicions in the execution of Ext. B2.

29. Even though DW1 has stated that the Raghavan Vaidyar had ill feelings towards Vinod on account of the atrocities from the part of Vinod, such alleged actions from the part of Vinod have not been explained either in the written statement or in the evidence. Apart from stating that his behaviour was not good, nothing more has been explained. The burden to prove the execution and genuineness of Ext. B2, as well as to dispel all the suspicious circumstances in the execution of Ext. B2, is on the propounders of Ext. B2. They have failed to prove the execution of Ext. B2 as well as the genuineness of its contents. Further, they have failed to dispel all the suspicious circumstances exist in the execution of Ext. B2. Matters being so, Ext. B2 is of no use at all.

30. This Court had occasion to consider the doctrine of dependant relative revocation in Vadakkayil Gopalan v. Vadakkayil Paru and others [MANU/KE/0669/2013 : 2013 (3) KLT 69], wherein it has been held as follows:-

“The doctrine of dependent relative revocation is explained by Jarman on Wills, as follows:

“Where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction and therefore, if the will intended to be substituted is inoperative from defect of attestation or any other cause, the revocation fails also, and the original will remains in force. The doctrine, which has been described as somewhat overloaded with unnecessary polysyllables, applies whenever the intention to revoke a will is conditional only and the condition is not fulfilled, and the doctrine may apply although the later will is partially effective.”
Of course, this Court has held that even in cases wherein the doctrine of dependent relative revocation can be applied, it does not mean that the genuineness of the contents of the earlier will have to be swallowed and taken as granted without proof of the contents of the Will as contemplated under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.

31. It is true that the defendants are not disputing or challenging the execution of Ext. A1. It is a further fact that when the said Will has been clearly revoked through Ext. B2, the doctrine of dependent relative revocation comes into play when Ext. B2 has failed on account of the lack of proof of execution and attestation, and also on account of other suspicious circumstances exist in the execution, which the propounders have failed to dispel. Both the courts below have committed grave error in upholding Ext. B2 and in nonsuiting the plaintiffs. Judgments and decrees passed by both the courts below are liable to be set aside, and appropriate reliefs have to be granted to the plaintiffs.

32. When Ext. B2 cannot be pressed into service and the same cannot be relied on, the reliefs (A) and (B) sought for by the plaintiffs can as such be granted. Relief B(a) has also to be granted and it has to be declared that Ext. B2 is void and illegal and the same does not bind the plaintiffs. When document No. 3532/99 dated 27.12.1999 of the Payyoli Sub Registry has not been produced, relief B(b) cannot be granted and the said document cannot be declared to be null and void. Consequently, relief B(c) also cannot be granted. Relief B(d) can be granted with a minor modification that the 4th defendant and his men shall not commit trespass into any of the portions of plaint A schedule property, except plaint B schedule property, and he shall not cause any hindrance or obstructions to the peaceful possession and enjoyment of the plaintiffs over the plaint A schedule property.

In the result, the Second Appeal is allowed and the judgments and decrees passed by both the courts below are set aside. The suit is decreed by granting the following reliefs to the plaintiffs:-

“(i) It is hereby declared that Ext. B2 is void, illegal and inoperative and the same is not binding on the plaintiffs or their rights over the plaint A schedule property, except plaint B schedule item.

(ii) The defendants are restrained by a decree of perpetual injunction from forcibly evicting the plaintiffs from the plaint A schedule property, except plaint B schedule item otherwise than through due process of law, and they are restrained from encumbering or alienating the said properties and also from committing any sort of waste thereon.

(iii) The 4th defendant and his men or persons claiming under him are restrained by a decree of perpetual injunction from committing trespass into any of the portions of plaint A schedule property other than plaint B schedule item and from causing any hindrance or obstruction to the peaceful possession and enjoyment of the plaintiffs over the said properties.”

In the nature of this appeal, the parties shall bear their respective costs. All pending interlocutory applications in this appeal are closed.

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